Talmud - Bava Metzia 19b בבא מציעא י״ט ב׳

This halakha applies in a case of a gift given by a healthy person, and that halakha applies in a case of a gift given by a person on his deathbed.

The Gemara explains: The mishna that teaches that if the giver says: Give it to its intended recipient, the finder must give it, applies in a case of a gift given by a person on his deathbed, who is capable of retracting his gift.

Therefore, the finder must give the deed to the recipient, as we say: What is there to say as a reason for not returning the deed? One might suggest that perhaps the giver initially wrote a deed of gift for this person, but then reconsidered and did not give it to him, and then he wrote a second deed of gift for another person and thereby gave his property to him. And now that his first deed was found, he wishes to retract his gift to that second person to whom he gave the property, by dishonestly validating the first deed.

This attempt to retract his latter gift will not succeed. If he gave his property to the recipient of the second deed of gift as the gift of a healthy person, then the second recipient incurs no loss by the first deed being given to its intended recipient. This is because, when the two deeds are produced in court, the recipient of the later one acquires the property, as the owner evidently retracted the first gift. Since one who gave away his property while on his deathbed can subsequently retract his gift, the second recipient acquires the property.

So too, if he gave it to the second person as the gift of a person on his deathbed, he incurs no loss. This is because the recipient of the later deed acquires the property, as the giver evidently retracted his gift to the first recipient.

And when the baraita teaches that even if both the one who wrote the deed and its intended recipient agree that it is valid, the one who found it should neither return it to this person nor to that person, it is referring to the case of a gift given by a healthy person, who is not able to retract his gift.

Therefore, one may not return the deed, as we say that perhaps the giver initially wrote a deed of gift for this person but then reconsidered and did not give it to him, and then he wrote a second deed of gift for another person and thereby gave his property to him; and now he wishes to retract his gift to that second person to whom he gave the property, thinking: Since I cannot retract the gift legally, I will say to the court that I gave the first deed of gift to this first person, and they will return the deed of gift to him, in order that when he produces this deed of gift, which is dated earlier, he will thereby acquire the property.

Rather, we say to the giver: We will not give this document to this person, as perhaps you wrote it but did not give it to him, and then you gave the property to another person, and you now wish to retract your gift to him unlawfully. Therefore, if in fact you did not give this property as a gift to another person, and you wish to return it to this person, then do the following: Write another deed of gift for him now and give it to him, so that if you did previously give the property to another person, he will incur no loss, as the earlier recipient acquires the gift.

Rav Zevid objects to this distinction between the mishna and baraita, asking: But don’t this mishna and that baraita both teach halakhot with regard to wills? How can Rabbi Abba bar Memel explain that the baraita is referring to the gift of a healthy person? Rather, Rav Zevid said that both this mishna and that baraita are referring to the gift of a person on his deathbed, and nevertheless, the contradiction between them is not difficult; this mishna is referring to him, the giver himself, who authorizes the return of the will to its intended recipient, and that baraita is referring to a case where the giver died, and his son is the one who is authorizing the return of the will.

The Gemara explains: The mishna, which indicates that if the giver says: Give it to the recipient, the finder must give it to him, is referring to a case where the giver himself authorizes giving the will, as he is capable of retracting it. Therefore, there is no harm in giving the will to the recipient, as we say that even if in the meantime he already gave the property to another person, the latter recipient incurs no loss. This is because in a case where there are two wills, a first one and a last one, the recipient of the last one acquires the property, as the owner evidently retracted the first will.

And when the baraita teaches that even if both the one who wrote the deed and its intended recipient agree that it is valid, the one who found it should neither return it to this person nor to that person, it is referring to a case where the one who wrote it died, and it is his son who authorizes its return to the recipient.

In that case, the deed may not be returned, as we say that perhaps his father wrote the deed of gift for this person and then reconsidered and did not give it to him, and after his father died, the son wrote a deed of gift giving the property to another person and gave it to him. And now the son wishes to retract that gift, thinking: Since I cannot retract the gift legally, I will say to the court that my father gave his deed of gift to this first person, and they will return him his deed of gift, and he will then go and appropriate the property from the one who legally acquired the property, as he will be successful in acquiring it, and I will divide it with him.

Therefore, we say to the son: We will not give this deed to this person, as perhaps your father wrote it but did not give it to him, and then you gave the property to another person, and now you wish to retract your gift.

Rather, if you are telling the truth that your father gave him this property, then you should go now and write another deed of gift for him, so that even if your father did not give him this property, and you wrote a deed of gift giving this property to another person, he will incur no loss. This is because in a case where there are two deeds of gift, a first one and a last one, the recipient of the first one acquires the property.

§ The Sages taught in a baraita: If one found a receipt for payment of a marriage contract, in a case when the wife admits that it was paid, he should return it to the husband. If the wife does not admit that it was paid, he should neither return it to this person, the husband, nor to that person, the wife.

In any event, the baraita states that when the wife admits that it was paid, one should return the receipt to the husband. The Gemara asks: But let us suspect that perhaps the wife wrote the receipt intending to give it to the husband in Nisan, but ultimately she did not give it to him until Tishrei, and she went and sold her marriage contract for financial advantage in the interim, between Nisan and Tishrei. In other words, she received a sum of money and in exchange agreed that if she were to be divorced or widowed and become entitled to payment of her marriage contract, the money would belong to the purchaser of the rights to her marriage contract.

And then after the couple is divorced, and the purchaser collects payment of the marriage contract from the husband, the husband will produce the receipt that was written in Nisan and will come to repossess property from the purchasers unlawfully.

Rava said:

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaMetzia 19b examines returning a found deed of gift, distinguishing rules for gifts by a healthy donor versus one made on a deathbed.